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T-1144-75
John R. Taylor (Plaintiff) v.
The Queen and the Minister of Manpower and Immigration and the Department of Manpower and Immigration (Defendants)
Trial Division, Collier J.—Vancouver, April 15 and 26, 1976; Ottawa, May 7, 1976.
Immigration—Plaintiff alleging that $1,000 posted by client as bond in favour of Crown and that by "power of attorney" document, debt in respect of bond assigned to him—Claiming sum wrongly paid to client—Immigration Act, R.S.C. 1970, c. I-2, s. 17.
Plaintiff alleged that $1,000 was posted by one G, a client, as a cash bond in favour of the Crown; that by a "power of attorney" document, G assigned the debt in respect of the bond to him; and that the sum ultimately and wrongly was paid to G directly. It was conceded that G had never revoked the "power of attorney". Defendants admit to an error in not transferring the document along with the rest of G's file when another departmental file was opened on G in Kamloops and also to the fact that the Assigned Debt and Power of Attorney Payment Regulations were not, in respect of processing of the document, complied with. Plaintiff claimed that these documents such as the one in question were treated by the Department as assign ments, and not mere powers of attorney authorizing an agent to receive, on behalf of a principal, moneys payable to the latter. Plaintiff admitted to doubts as to the legality of such docu ments, but claimed that the Department had insisted on using such a document.
Held, the action is dismissed. The moneys would, in the normal course, but for the Departmental error, have been paid to plaintiff. His client had authorized him to apply it against his account. However, the document was no more than an authorization by a principal to the Department to pay the sum to plaintiff and an authorization to plaintiff to receive the moneys on G's behalf. It created no right of action in the agent against the debtor if the debtor should choose to pay the principal directly. It cannot be construed as an assignment.
ACTION. COUNSEL:
F. R. Whiteside for plaintiff. J. R. Haig for defendants.
SOLICITORS:
John Taylor Associates, Vancouver, for plaintiff.
Deputy Attorney General of Canada for defendants.
The following are the reasons for judgment rendered in English by
COLLIER J.: The plaintiff claims the sum of $1,000. In the pleadings he alleges that amount was posted by one Iqbal Singh Gill as a cash bond in favour of the Crown; that by a "Power of Attorney" document Gill assigned the debt in respect of the bond to the plaintiff; that the sum was ultimately and wrongly paid directly to Gill.
There is little, if any, dispute as to the relevant facts. The plaintiff was the main witness. I accept his testimony.
The plaintiff is a lawyer. He has, for many years in his general practice of law, acted frequently as counsel for persons with problems in respect of the Immigration Act and immigration matters. In par ticular, he has frequently acted for would-be immi grants who have been subject to examination or special inquiry procedures, and who, pending examination or inquiry, have been released from custody under varying conditions including the payment of security deposits (see section 17 of the Immigration Act).
On June 12, 1972, Gill gave a security deposit of $1,000. He and an immigration officer signed a cash bond receipt (Exhibit 10-C). Gill was released from custody. Four other cash bond receipts were issued subsequently. They merely extended or replaced the earlier one. No other or further sums of money changed hands. At some stage a special inquiry into Gill's status and admissibility was held. The plaintiff acted for him.
On October 6, 1972, Gill signed a document entitled "Power of Attorney" in favour of the plaintiff. The purpose was to protect or ensure payment of the plaintiff's account for legal services already given and to be given in the future. The relevant portions of this document (Exhibit 2) are as follows:
POWER OF ATTORNEY
when given by an individual
KNOW ALL MEN BY THESE PRESENTS that I, Iqbal Singh Gill, of 536 E. 54th Avenue, in the Province of B.C., have made and appointed and by these presents do make and appoint John R. Taylor of #201-1111 West Georgia Street, Vancouver 5, B.C. as my true and lawful attorney up to and inclusive of the 1st day of November 1976, unless before that day I revoke this power of attorney by giving notice in writing to the Comptroller of the Treasury, Ottawa, to receive from the Receiver General of Canada all such sum or sums of money as are now due, or may hereafter become due and payable to me on the order of the Department of Manpower and Immigration of the Govern ment of Canada, relative to Bond 31672 but not exceeding in all one thousand dollars ($1,000.00), and to give a receipt or receipts for the same, I hereby ratifying and confirming and agreeing to ratify and confirm all that my said attorney may do by virtue hereof.
NOTE: 1. All the parties who join in giving the power of attorney must sign.
2. When the intention is to authorize a bank to receive money, the power of attorney should be in favour of such a bank and not in favour of its manager.
3. No additions or alterations in the text of this form may be made.
T-156134-B of January 4, 1935, directs that "All powers of attorney shall be in a form approved by the Department of Justice".
On November 23, 1972, Exhibit 2 was sent by mail to the Department of Manpower and Immi gration Office (Burrard St.), Vancouver. Appar ently another file on Gill had been opened in the Immigration Office at Vancouver International Airport. Exhibit 2 was then sent to that office.
Gill was, at one stage, ordered deported. Pursu ant to some general amnesty provision he was, on July 19, 1974, granted landed immigrant status. At that time another departmental file had already been opened on him in Kamloops, and all or part of the Burrard Street file had been sent there. But Exhibit 2, through departmental oversight, was not transferred to Kamloops from the Vancouver International Airport file. A requisition for refund of the bond was submitted by the Kamloops office on July 23, 1974. Sometime in August 1974, the $1,000 was mailed by the appropriate government department to Gill at Golden, B.C.
It is conceded that Gill had never, at any rele vant time, revoked Exhibit 2. The defendant admits there was an error in not transferring Exhibit 2 to the Kamloops office; if that had been
done, it is conceded the refund monies would, in accordance with the document, have been sent to the plaintiff. The defendant further concedes that the provisions of the Assigned Debt and Power of Attorney Payment Regulations' were not, in respect of the interdepartmental and intergovern- mental processing of Exhibit 2, complied with.
According to the plaintiff, it has always been his experience that the Department of Manpower and Immigration has, for practical purposes, treated documents such as Exhibit 2 as assignments, and not as mere powers of attorney authorizing an agent to receive, on behalf of a principal, moneys payable to the principal. The plaintiff, over the years, has had some doubt as to the legal, as distinguished from the practical, effect of docu ments similar to Exhibit 2. He had, on approxi mately four occasions, drawn up what he con sidered to be proper assignment forms. This had been done over a period some three years ago. He had submitted his forms to and discussed them with a person whom he took to be the senior accounts officer in charge of the, accounts section in the Department of Manpower and Immigration at Vancouver, B.C. That person had refused to accept the plaintiff's preferred forms and had insisted the only suitable document was the departmental form (Exhibit 2). The plaintiff admits he did not, on any of those occasions, pursue the matter further with higher officials in Ottawa, or submit individual assignments in accordance with the Assignment of Crown Debt Regulations 2 . He was not aware of those Regula tions until this litigation. I infer he did not pursue the matter further in Ottawa because of the posi tion taken by the accounts section in Vancouver, and by the fact he had, in at least 100 similar cases, received payment of monies (without inci dent), when he had obtained from other clients and submitted documents identical to Exhibit 2.
The plaintiff contends that, on all these facts which I have recounted, he is entitled to recover
1 Part of Exhibit 15.
2 Part of Exhibit 15.
from the defendant. It is said that when one reads the words in Exhibit 2 in the light of the provisions of the Financial Administration Act', the docu ment goes far beyond a common law power of attorney and operates as an assignment to the plaintiff of the $1,000 debt.
I have every sympathy for the plaintiff. The money would, in the normal course, and but for the defendant's departmental error, have been paid to him. His client had authorized him to apply it against the account for legal services.
Unfortunately, I am unable to agree with the plaintiff's contention. I am convinced Exhibit 2 is nothing more than an authorization by a principal (Gill), to the Department, to pay the sum in question to the plaintiff, and an authorization to the plaintiff to receive the monies on behalf of Gill. It creates no right of action in the agent (the plaintiff) against the person who owes the money (the Crown or the Department) if the debtor, for some reason, chooses to pay the principal directly. In my opinion, Exhibit 2 cannot be construed as an assignment of the debt.
In view of the conclusion I have reached, it is unnecessary to express any opinion on a further argument raised on behalf of the defendant: if Exhibit 2 was indeed an assignment, then the plaintiff had not complied with the technical manner of giving notice of the assignment as required by the relevant regulations.
The action is therefore dismissed. The defendant is entitled to costs.
3 R.S.C. 1970, c. F-10.
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